JUDGMENT

Beckett, J. - This is a suit for recovery of Rs. 4227-5-0 on the basis of a document the relevant terms of which run as follows:

...I, Daulat, am the exclusive owner of the property, (here follows the detail of the property). The property in question is free from all incumbrances. I have mortgaged the same without possession (adrahan ki hai) in favour of Sardar Sampuran Singh for a sum of Rs. 2000 and I will be bound by the following conditions: (1) I will pay the mortgagee along with the principal interest Re. 1-8-0 percent, per mensem every half year. If I fail to do so, these arrears will be regarded as principal money due and. I will be liable to pay interest at the above rate on these arrears as well. (2) Whenever I will pay in lump sum, the principal amount together with, arrears of interest and compound interest, if any, I will redeem the property. Without payment of interest and compound interest due, I will not be entitled to redeem the property.... I have accordingly, executed this ad-rahan-nama in favour of Sardar Sampuran Singh mortgagee....

2. It is not disputed that ordinarily the terms of this document entitled the plaintiff to have the property brought to sale but difficulties have arisen for two reasons. In the first place, although both the parties are agriculturists, Section 60, Punjab Alienation of Lands Act, does not allow a civil Court to bring the property to sale, but only to grant a lease for a period not exceeding twenty years. Secondly, the mortgagor has granted a subsequent lease of the property, which has not yet expired. On behalf of the lessee, it is contended that the so called mortgage amounts only to a charge on the land, which is not binding on a subsequent transferee for consideration without notice.

3. On behalf of the plaintiff, it is contended that this is a simple mortgage which takes precedence, over the rights of the lessee, and that in any case the lease was not granted is good faith. The trial Court held that the transaction in favour of the plaintiff constitutes a simple mortgage which takes precedence over the rights of the lessee. While considering it unnecessary to give a finding on the question whether the lease had been granted in good faith or not, it expressed the opinion that the lease would not in any case have taken precedence over the plaintiff's mortgage. The plaintiff was accordingly granted a decree under which the plaintiff would be entitled to apply for a final decree for realization of the decretal amount by lease of the mortgaged land for a maximum period of twenty years, if the mortgage money was not paid into Court by a certain date.

4. This decree was reversed in appeal by the Additional District Judge. He Wag of the opinion that the transaction did not amount to a mortgage in spite of the words in the document, but only gave the plaintiff a charge on the property, which was not binding on the subsequent transferee for consideration without notice. With regard to consideration, he came to the conclusion that the lease had been granted for consideration in good faith. The decree of the trial Court was modified by providing that the plaintiff could only apply for a final decree for a lease which would come into effect after the expiry of the existing lease. Against this decree, the plaintiff has preferred a second appeal.

5. The first question to be decided is whether the transaction in favour of the plaintiff amounted to a mortgage or not. Counsel for the lessee contends that only a charge was imposed, inasmuch as the instrument did not state in precise terms that any interest was being transferred, and for this purpose he relies on the definition of "mortgage" and "charge" contained in Sections 58 and 100 respectively of the Transfer of Property Act. Section 58 defines a mortgage as the transfer of interest in specific immovable property for securing the payment of a loan, whereas Section 100 lays down that where immovable property is made security, and the t